In re G.H.

Appeals from the Superior Court of the District of Columbia Family Division (N641-99), (N642-99), (N643-99) (Hon. Kaye K. Christian, Trial Judge)

Before Schwelb, Reid, and Glickman, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued March 2, 2002

Concurring opinion by Associate Judge Reid

On March 28, 2000, following a fact-finding hearing, the trial judge found that respondent S.H. was a neglected child within the meaning of D.C. Code § 16-2301 (9)(A) *fn1 and (C) (1981), *fn2 and that her brothers, G.H. and K.H., were neglected children within the meaning of § 16-2301 (9)(C) and (E) (1981). The judge found that, while acting in loco parentis, H.C., the children's mother's live-in paramour, dragged twelve-year-old S.H. by her hair, ripping out sections of hair in two places, that he kicked her in or stepped on her back, and that several days later, he struck her in the face and drew blood. The judge concluded that H.C.'s actions constituted child abuse within the meaning of the statute. The court found that R.H., the children's mother, viewed H.C.'s conduct as appropriate, and that her sons, G.H. and K.H., were therefore in imminent danger of being similarly abused. After the mother refused to cooperate with court-ordered evaluations, the judge found that the mother was unable to discharge her responsibilities to her children because of mental incapacity. The judge ordered that all three respondents be placed with K.H., Sr., the father of two of the children, under the protective supervision of the court. *fn3

Although the mother's appellate counsel has filed a brief defending the mother's conduct, the mother has not filed a notice of appeal. H.C. is therefore the sole appellant. H.C. has standing to appeal insofar as the ruling negatively affects his reputation. In re E.R., 649 A.2d 10, 12-13 (D.C. 1994). We conclude that the evidence was sufficient to support the finding that H.C. abused S.H., but not the finding that H.C.'s conduct placed S.H.'s brothers in imminent danger of being abused. Because the mother did not appeal, we do not reach any other issue.

I.

On May 19, 1999, K.H., S.H., and G.H. were living with their mother, R.H., and her boyfriend, H.C., in the District of Columbia. K.H., Sr., the father of K.H., a boy born on February 8, 1984, and of S.H., a girl born on October 5, 1986, lived in North Carolina and provided child support payments to their mother. G.H. was born on November 22, 1989. G.H.'s father was not involved in this suit. H.C. is not the father of any of the children.

Neglect proceedings were instituted after a counselor at Bertie Backus Junior High School reported to the police that a student had been assaulted by an adult man in front of a nearby McDonald's restaurant. Police identified the student in the alleged incident as S.H. This incident, as well as a second encounter between S.H. and H.C., formed the basis for the allegations of neglect.

S.H. described the McDonald's incident in her testimony before the trial court. She reported that she went to McDonald's with friends after school. From the restaurant's parking lot, she saw H.C. approaching the restaurant. She knew that H.C. was there to take her to a tutoring class which she did not wish to attend, and she sought to evade him as he got out of the car. S.H. related that H.C. approached her, grabbed her by the arm, and pushed her, and that she tripped and fell face down on the cement pavement. She testified that H.C. kicked her or stepped on her back while she lay on the ground, and that he then dragged her by her hair toward the car door. S.H. said she began crying when H.C. started pulling her hair and dragging her. S.H. reported that after H.C. had pulled her to the car door, she agreed to get in the car by herself, and she did so. S.H. subsequently noticed two bald spots on her scalp from hair that had been pulled out by H.C.

Dr. Thomas Michael Anderson, an emergency room physician at Children's National Medical Center, examined S.H. on May 25, 1999, six days after the initial incident, when a Metropolitan Police Youth Division Detective brought her to the emergency room for evaluation. Dr. Anderson testified that he observed two two-centimeter areas on the left side of S.H.'s head where her hair had been "pulled from her scalp." According to Dr. Anderson, S.H. reported that "she had been hit, kicked, and punched by her mother's boyfriend" and that "her mother's boyfriend had grabbed her by the hair . . . and had pulled her by the hair."

In addition, Dr. Anderson observed that S.H. "had a cut on the middle of her upper lip that had a crust of blood on it, a scab had already formed." He reported that the cut was approximately one-quarter inch in size. Dr. Anderson related that, according to S.H., the cut came from "a punch to the face by her mother's boyfriend" on the night before she appeared in the Emergency Room. S.H. told Dr. Anderson that the punch "occurred when the mother's boyfriend became angry at her for not telling the truth about where she was going that night." Dr. Anderson testified that so far as he could determine, these were the only injuries that S.H. had sustained.

The mother, who had also been charged with neglecting S.H., testified at the fact-finding hearing. The mother sought to defend her boyfriend's actions, but her testimony substantially supported her daughter's account in relation to both incidents. The mother testified that S.H. told her about the bald spots, and that she saw a small area on her daughter's head that was completely bald. She testified that H.C. hit her daughter with "little taps," but she demonstrated the "taps" by "slap[ping] herself in the face." She acknowledged that the "taps" left a red area on S.H.'s face for a short period and that S.H. began to bleed as a result, but "[i]t was just a little, little blood."

H.C. testified on his own behalf, and he denied that he harmed S.H. on either occasion. With respect to the McDonald's incident, H.C. stated that he had argued with S.H. for a few minutes about her going to tutoring. *fn4 He asserted that "[w]hen I began to approach [S.H.], she sat down on the ground. . . . I proceeded to grab her by the back of her clothing and pulled her to the car . . . I opened the car and forced her into the car and I took her to the tutor." He claimed that he never noticed any injury, that S.H. did not complain of any injury, and that S.H. did not cry. When asked to explain the bald spots on S.H.'s head, H.C. testified as follows:

The Witness: . . . [T]he only thing I can imagine is that when I grabbed her, I must have caught her braids up in the clothing when I grabbed it.

The Court: How could you catch the side of her braids . . . if you had the back of her hair?

The Witness: No . . . I'm grabbing the back here and I must have grabbed the braid in the clothing when I got it in here. . . . I didn't grab her by the braids and pull them out of her head. I didn't do that.

With respect to the second incident, H.C. testified that, contrary to instructions that she had received, S.H. did not come home on a school night until 10:00 or 10:30 p.m., long after dark. He testified that when S.H. came in "I approached her very deliberately and . . . I didn't, or I don't recall hitting her. I recall bumping into her and speaking to her in as frightening a voice as I could . . . to make her come home at night before dark." H.C. was questioned further on cross examination:

Q: [In the] incident where [S.H.] stayed out late, you're saying you didn't hit her at all, is that correct?

A. No, I didn't, not with my hand. No.

Q: You didn't hit her with your hand.

A: No.

Q: What did you hit her with?

A: Actually, I didn't hit her, I just walked into her.

Q: So what, your walking into her caused her mouth to bleed?

A: I don't know what caused her mouth to bleed. I didn't, when I was there, her mouth . . . was not bleeding.

In sum, H.C. denied dragging S.H. by her hair, he denied kicking her, and he denied striking her in the face.

The trial judge credited the testimony of S.H., Dr. Anderson, and R.H., and she did not believe the account provided by H.C. The judge found, inter alia, that

6. Mr. [C.] grabbed [S.H.] by the hair and dragged her for fifteen feet to the car, causing her to lose her hair in two separate areas of her scalp.

8. The Court finds that on another occasion, Mr. [C.] slapped [S.H.] in the face and that he drew blood.*fn5

Based on these findings, the court concluded, inter alia, that H.C. had abused S.H. within the meaning of D.C. Code § 16-2301 (9)(A). *fn6 Finding that S.H.'s brothers were also in imminent danger of similar abuse, the judge ordered that all three children be placed with K.H., Sr., the father of S.H. and K.H., under the protective supervision of the court. H.C. filed a timely notice of appeal.

II.

Although H.C. is in no position to complain of the disposition of the children in the absence of an appeal by the mother, see Part III, infra, we conclude that H.C. has a reputational interest sufficient to provide him with standing to challenge the finding of abuse. To adapt our language in In re E.R., supra, 649 A.2d at 12,

an adjudication of neglect may have serious consequences for a parent, especially where, as here, the judge has found that [H.C. abused S.H.].

Should a subsequent claim of neglect be charged, we believe that the initial finding at issue in this appeal might at some juncture adversely reflect upon [H.C.]. (Citations and internal quotation marks omitted.) *fn7

It is undisputed that H.C. was acting in loco parentis vis-a-vis S.H. and her brothers. In the trial court, the District had the burden of establishing, by a preponderance of the evidence, In re S.K., 564 A.2d 1382, 1382-83 (D.C. 1989), that H.C. inflicted physical or mental injury upon S.H. D.C. Code § 16-2301 (23). H.C. contends that "[t]here is nothing . . . about what happened before, during or after [the McDonald's] incident which carries indicia of abuse within any meaning of the word or [of the statute]." H.C. asserts that he "tried to deal firmly with two serious problems in the raising and protecting of a rebellious adolescent." Id. at 2.

The trial judge found otherwise, and the scope of our review of the judge's findings is limited. The judgment in a case tried by the court without a jury may not be set aside except for errors of law unless it is "plainly wrong or without evidence to support it." D.C. Code § 17-305 (a) (2001). This is so because the trial judge is on the scene and "able to observe and assess the demeanor of the witnesses," whereas the appellate court is "limited to a paper record which may capture the words of a case but not its heart and soul." In re S.G., 581 A.2d 771, 774 (D.C. 1990). Moreover, as we noted in In re T.M., 577 A.2d 1149, 1151 (D.C. 1990),

we must consider the evidence in the light most favorable to the [District], giving full play to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences. The [District] is entitled to the benefit of all reasonable inferences from the evidence[.] (Citations omitted.)

Our neglect statute does not proscribe all physical chastisement of a child by a parent or by one acting in loco parentis. On the contrary, the legislature's prohibition of "excessive corporal punishment" in § 16-2301 (23) (emphasis added) necessarily means that non-excessive corporal punishment does not constitute child abuse. The question is whether the physical force used by H.C. against S.H. was "reasonable under the facts and circumstances of the case." In re L.D.H., 776 A.2d 570, 575 (D.C. 2001) (citation omitted). *fn8 See also Carpenter v. Commonwealth, 44 S.E.2d 419, 423 (Va. 1947):

[T]he great preponderance of authority is to the effect that a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child.

Viewing the record in the light most favorable to the District, the trial judge could reasonably find by a preponderance of the evidence that H.C. used unreasonable force against S.H. As previously noted, S.H. described the two instances of physical abuse by H.C., as well as the injuries to her head and face. Dr. Anderson's testimony corroborated the physical injuries S.H. described. The mother's testimony supported her daughter's account in key respects. The mother demonstrated how H.C. struck S.H., and she reported that her daughter was bleeding as a result. Credibility determinations were for the judge, as the trier of fact, and we cannot second-guess them. In re S.G., supra, 581 A.2d at 774. Moreover, the judge could reasonably infer consciousness of guilt, and therefore guilt itself, from H.C.'s apparently false exculpatory statements. *fn9

The judge could also reasonably conclude "under the facts and circumstances of the case," In re L.D.H., supra, 776 A.2d at 575, that H.C.'s actions constituted child abuse. H.C. dragged an adolescent child by her hair with enough force to pull her hair out from its roots leaving her scalp exposed. He kicked or stepped on her back. A few days later, he struck her in the face and left her bleeding. It is true that S.H. was not seriously injured, but we have held that serious injury need not be shown to sustain a finding of abuse. Id. However unruly and difficult S.H. may have been, *fn10 we cannot reject as unreasonable the trial judge's finding that the force used was excessive.

The judge also found that, as a result of H.C.'s conduct and the mother's tolerance of it, S.H.'s brothers were "in imminent danger of being abused," D.C. Code § 16-2301 (9)(E), because their sibling was abused. Id. The gravamen of the evidence before the court regarding the two brothers was to the effect that they were happy in their mother's home and doing well, and we discern no adequate support for a finding that H.C.'s conduct so endangered them that their removal from the home was warranted on account of his actions.

III.

H.C. contends that even if he used excessive force in two isolated instances vis-a-vis S.H., this did not warrant intrusion by the state into the lives of the members of this family or the removal from the mother's home of the children, including S.H.'s brothers, who had not been abused at all and who were said to be happy living with their mother. On the merits, his position is not an implausible one. *fn11 Nevertheless, in the absence of an appeal by the mother from the trial court's disposition order, we are in no position to decide whether there is substantive merit in H.C.'s position.

Once abuse had been found, the only real issue at disposition was whether the children should remain with their mother, who was still living with H.C., or with K.H., Sr., the father of two of the children, who is a resident of North Carolina. The court's probation officer and supervisory probation officer recommended, and the judge ordered, that all three children be placed with K.H., Sr.

As a non-parent, H.C.'s claims as to at least two of the children, S.H. and K.H., are obviously inferior to those of K.H., Sr., who is their biological father. As to the third child, G.H., the decision to keep all three respondents together was eminently reasonable. Moreover, if H.C. were permitted to litigate the merits of the disposition and prevail, then the children would presumably have to be returned to the mother, who has acquiesced in the placement with K.H., Sr., by failing to appeal from the judge's ruling. *fn12 As we have stated in a concededly different context, "[t]he status assumed by one in loco parentis is a somewhat nebulous legal relationship of a temporary character." Fuller v. Fuller, 247 A.2d 767, 770 (D.C. 1968), petition denied, 135 U.S. App. D.C. 353, 418 F.2d 1189 (1969) (internal quotations and citations omitted). H.C.'s rights as a person acting in loco parentis are surely subordinate to the rights of the mother with whom H.C. has been living; if she has no legal right to have the children returned to her, then her paramour cannot have such a right. The mother, having waived any legal right to have the trial court's disposition order altered in her favor, H.C. can have no such legal right.

IV.

For the foregoing reasons, we conclude that the evidence was sufficient to support the trial court's finding that H.C. abused S.H., but insufficient to support the finding that H.C.'s conduct placed G.H. and K.H. in imminent danger of being abused. In the absence of an appeal by the mother, we leave the trial court's disposition order undisturbed.

I fully support Judge Schwelb's opinion regarding this matter. I write separately solely to emphasize our conclusion "that the evidence was . . . insufficient to support the finding that H.C.'s conduct placed G.H. and K.H. in imminent danger of being abused." Consequently, there was no basis on which to remove them from R.H.'s care. While R.H. filed a brief challenging the adjudication of all of her children as neglected, she failed to file an appeal. Thus, I agree that she has waived her right to challenge the disposition order.

Since H.C. is neither the adoptive nor the biological father of G.H. and K.H., he must cite some authority permitting him to challenge the adjudication with respect to G.H. and K.H. He has not done so. Nor has he demonstrated that the adjudication pertaining to G.H. and K.H. has resulted in a "stigma and collateral consequences" for him. See In re E. R., 649 A.2d 10, 12 (D.C. 1994). Under these circumstances, I am constrained to agree with Judge Schwelb that the trial court's disposition order must be left undisturbed, even though there is insufficient evidence to support a finding of neglect with respect to G.H. and K.H.

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